Court rules credible evidence on cash withdrawals over Isa Samad's graft case

Justice Mohd Nazlan Mohd Ghazali, in his judgment, said in respect of all the nine charges faced by Mohd Isa under Section 16 (a) (A) of the Malaysian Anti-Corruption Commission (MACC) Act, the series of cash withdrawals by a prosecution witness, a shareholder and director of JV Evolution Sdn Bhd, Azizi Abdul Wahab, which caused the cash to finally be given to the accused as stated in all the nine charges.

JV Evolution Sdn Bhd was the agent appointed by Gegasan Abadi Properties Sdn Bhd (GAPSB), whom former director was Ikhwan Zaidel, 60, for the sale of Merdeka Palace Hotel and Suites (MPHS) by GAPSB, the owner of the hotel at that time.

“Ikhwan then handed over the cash to Mohd Isa’s special officer, Muhammad Zahid Md Arip, who finally gave the cash to the accused as stated in all the nine charges.

“In view of the evidence of the receipt of the cash by the accused, I, therefore, invoke the statutory presumption under Section 50 of the MACC Act for the defence to rebut and show that the gratification in the form of the cash was not received corruptly and that it was not obtained as a reward for the accused’s involvement in the approval by the board of Felda Investment Corporation Sdn Bhd (FICSB) of the purchase of MPHS,” he said.

The judge said the prosecution had successfully adduced credible evidence proving each and every essential ingredient of the offence of accepting gratification under Section 16 (a) (A) of the MACC Act as framed in the nine charges, in relation to any of which if unrebutted or unexplained, would warrant a conviction.

“A prima facie case has therefore been made out against the accused in respect of each of the nine charges under Section 16 (a) (A) of the MACC Act,” he said.

The court however acquitted Mohd Isa of one criminal breach of trust (CBT) charge he faced involving the same hotel after finding the prosecution failed to prove prima facie case against him on the charge.

Elaborating his judgment on the CBT case, Justice Mohd Nazlan said the minutes of the 10th meeting of the board of FICSB on April 29, 2014, clearly showed that the purchase of MPHS at RM160 million was in fact approved by the FICSB board of directors, and in fact was not disputed.

“Even if the accused as a director of FICSB may have been entrusted with the funds of the company, he cannot under the law be said to have committed CBT on the disposal of company funds for the purchase of MPHS,” he said.

The judge added this was because not only did the accused alone as FIC chairman or director not have the requisite authority to approve the purchase, but the purchase was approved by the entire board consisting of seven directors, five of whom including the accused and FICSB former chief executive officer, Mohd Zaid Abdul Jalil, who attended the said meeting.

“There is lack of evidence of the accused having influenced or asked the other members of the board of FICSB to approve the said purchase,” he said.

“The minutes of the relevant meeting also did not record any discussion on the matter. Neither did the main company secretary who recorded the minutes hear anything to that effect,” said the judge.

Justice Mohd Nazlan added that criminal liability under CBT could not be founded on the disposal of company funds by FICSB to finance the purchase of MPHS without the approval of FELDA if the payment for the said the purchase has been consented to by FELDA.

“The prosecution has failed to establish a prima facie case against the accused in relation to the single CBT charge. The accused is therefore ordered to be discharged and acquitted from this CBT charge,” said the judge.

On the CBT charge, Mohd Isa was alleged to have approved the hotel purchase for RM160 million without the approval of Felda’s board of directors and was charged with committing the offence at Menara Felda, here on April 29, 2014.

The charge was framed under Section 409 of the Penal Code, which carries a maximum jail term of 20 years, together with whipping and a fine, upon conviction.

After the verdict was delivered, Mohd Isa, 71, said he would testify under oath from the witness box for the nine graft charges against him, where he will be subject to cross-examination by the prosecution.

Justice Mohd Nazlan ordered Mohd Isa to enter his defence on Aug 17, 18 and 19.

The former Menteri Besar of Negeri Sembilan was accompanied by his wife Puan Sri Bibi Sharliza Mohd Khalid and his family members.

Mohd Isa was represented by Datuk Sallehuddin Saidin, while the prosecution is led by deputy public prosecutor Afzainizam Abdul Aziz.

On Dec 14, 2018, Mohd Isa pleaded not guilty on one count of CBT and nine corruption charges.

All the bribery offences were allegedly committed at Level 49, Menara Felda, Platinum Park, Persiaran KLCC near here between April 29, 2014, and Dec 15, 2015.

When met outside the courtroom, Mohd Isa said he will enter his defence for the nine corruption charges involving over RM3 million brought against him.

“I was slapped with 10 charges. For the CBT charge, I was acquitted and discharged, so I will enter my defence for the remaining nine charges of corruption and I have chosen to do so by giving sworn evidence from the witness box,” he told reporters.

Meanwhile, Salehuddin said his client will take the witness box to give sworn evidence to rebut all allegations that he had received the money as charged.

The lawyer said by opting to give sworn evidence, his client had proved that was ready to be cross-examined by the prosecution.

“If the prosecution had any question, Tan Sri Mohd Isa will be there to answer them,” he said.

Meantime, Afzainizam, when contacted, said he will seek further instruction from the Attorney-General on whether or not to file an appeal against the court’s decision on the CBT charge.